A federal schizophrenia about marijuana

There is supposed to be bipartisan support for amending the federal criminal code so that tens of thousands of non-violent criminals do not rot in prison at taxpayers' expense. Among the "criminals" often mentioned are those convicted of possessing or selling marijuana, which is widely viewed as less harmful than legal substances such as alcohol or tobacco.

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The Smarter Sentencing Act, S. 1410, sought to reduce jail time for low-level drug offenders. The Recidivism Reduction and Public Safety Act, S. 1675, facilitated early release for offenders who demonstrate a willingness to rehabilitate their lives. Both bills were expected to come to a vote in the Senate this summer. Both have been "placed on Senate Legislative Calendar under General Orders." They will almost certainly stay dormant until 2015.

One reason the bills stalled: a Department of Justice (DOJ) announcement appeared to render them less urgent. In late April, Deputy Attorney General James Cole said the DOJ would consider clemency for nonviolent felons who had served a minimum of 10 years and who may have been "over-sentenced" due to zero-tolerance policies. Civil-rights advocates immediately commented that the lengthy review process and stringent DOJ standards would result in very few early releases. Nevertheless, the announcement may have blunted the zeal of prison reformers while doing nothing to dull that of drug-war advocates.

There is a key question. Is the Obama administration sincere in its stated intention to ease draconian drug sentences? Or is the rhetoric just that? A litmus test is to look at the federal government's inconsistent and baffling stand on the legalization of marijuana. President Obama joked with CNN in 2007 about having "inhaled," and he quipped "that was the point." This seems to indicate a casualness about marijuana. But the federal government has aggressively attacked marijuana producers. For example, Operation Choke Point is a policy through which "undesirable" but legal businesses, such as marijuana-related ones in states like Colorado, are refused bank accounts. What is real — the words or the actions?

Perhaps it is best to look at the actions not taken by Obama.

Marijuana remains a Schedule I drug along with heroin. Schedule I drugs are "highly addictive" and have no "accepted" medical value, which means they cannot be prescribed by a doctor. Nevertheless, the Controlled Substances Act (CSA) authorizes the Attorney General to reclassify controlled substances. (The authority resides in the Drug Enforcement Agency, which is a branch of the DOJ.) In short, the Obama administration has the ability to immediately and unilaterally shift marijuana from a Schedule I to Schedule III drug alongside the likes of codeine. Or marijuana could simply be declassified.

But doing so could cause a political backlash and alienate the financial support of Big Pharma. Perhaps that is why Obama inaccurately told CNN interviewer Jake Tapper in January that "[w]hat is and isn't a Schedule I narcotic is a job for Congress." Certainly, Congress could address the issue, but Obama could as well. Nevertheless, the equivocation may have saved face with young voters, upon whom the November elections may depend.

Obama has other paths to legalize marijuana as well. He could wield a weapon with which he is quite comfortable: an executive order. Obama can exercise any power granted by Congress or the Constitution, which means he could declassify marijuana with the stroke of a pen. Indeed, he has done far more radical acts through executive orders, including the recent designation of approximately a half-million acres in New Mexico as a "national monument" site. Under the CSA, such legalization would require a favorable report from the Department of Health and Human Services but this federal agency, like the DOJ, is under Obama's direction.

As a third resort, Obama could simply order Attorney General Eric Holder to cease all federal prosecution of marijuana growers and dealers. In 2011, the DOJ announced it would not defend the federal Defense of Marriage Act in court. Now that the subject has changed to marijuana, however, Obama claims to lack the authority to cease prosecution of growers who clash with federal law.

America's incarceration rate is by far the world's highest, with the possible exceptions of North Korea and communist China, about which there is no reliable data. Americans are not more criminal than other people. But the government increasingly punishes peaceful behavior that is merely self-destructive or "undesirable."

Placing a young, inhaling Obama in jail would not have accomplished anything positive. Why is he willing to persecute today's young people for past behavior about which he jokes?

McElroy is a research fellow at the Independent Institute.